lesson 16: california real estate license law principles of california real estate

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Lesson 16: Lesson 16: California Real California Real Estate License Estate License Law Law Principles of California Real Estate

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Page 1: Lesson 16: California Real Estate License Law Principles of California Real Estate

Lesson 16: Lesson 16:

California Real California Real Estate License LawEstate License Law

Principles of California Real Estate

Page 2: Lesson 16: California Real Estate License Law Principles of California Real Estate

The Real Estate Law

California’s Real Estate Law:Statute adopted by legislature to regulate

real estate profession.Business & Professions Code

sections 10000 to 10580

Page 3: Lesson 16: California Real Estate License Law Principles of California Real Estate

The Real Estate Law

California’s Real Estate Law:Statute adopted by legislature to regulate

real estate profession.Business & Professions Code

sections 10000 to 10580Protects public from incompetent,

unethical, or dishonest agents.

Page 4: Lesson 16: California Real Estate License Law Principles of California Real Estate

Administration of Real Estate LawDept. of Real Estate

Real Estate Law is administered by the Department of Real Estate (DRE).Department is a division of the Business

and Transportation Agency.

Page 5: Lesson 16: California Real Estate License Law Principles of California Real Estate

Administration of Real Estate LawDept. of Real Estate

Real Estate Law is administered by the Department of Real Estate (DRE).Department is a division of the Business

and Transportation Agency.

Chief officer of the DRE is the Real Estate Commissioner.

Page 6: Lesson 16: California Real Estate License Law Principles of California Real Estate

Administration of Real Estate LawCommissioner

Real Estate Commissioner:appointed by the Governor

Page 7: Lesson 16: California Real Estate License Law Principles of California Real Estate

Administration of Real Estate LawCommissioner

Real Estate Commissioner:appointed by the Governormay not engage in real estate activities or

have an interest in a real estate firm

Page 8: Lesson 16: California Real Estate License Law Principles of California Real Estate

Administration of Real Estate LawCommissioner

Real Estate Commissioner:appointed by the Governormay not engage in real estate activities or

have an interest in a real estate firmmust have been a real estate broker

actively engaged in business in California for five years

Page 9: Lesson 16: California Real Estate License Law Principles of California Real Estate

Real Estate Commissioner: grants and denies licenses enforces the Real Estate Law

Administration of Real Estate LawCommissioner’s duties

Page 10: Lesson 16: California Real Estate License Law Principles of California Real Estate

Real Estate Commissioner: grants and denies licenses enforces the Real Estate Law issues rules and regulations to implement law regulates the sale of subdivisions and business

opportunities

Administration of Real Estate LawCommissioner’s duties

Page 11: Lesson 16: California Real Estate License Law Principles of California Real Estate

Real Estate Commissioner: grants and denies licenses enforces the Real Estate Law issues rules and regulations to implement law regulates the sale of subdivisions and business

opportunities investigates non-licensees performing real estate

activities holds disciplinary hearings on Real Estate Law

violations

Administration of Real Estate LawCommissioner’s duties

Page 12: Lesson 16: California Real Estate License Law Principles of California Real Estate

Administration of Real Estate LawAdvisory Commission

Real Estate Advisory Commission:appointed by the Governor10 members, including 6 brokers and 4

members of the public

Page 13: Lesson 16: California Real Estate License Law Principles of California Real Estate

Administration of Real Estate LawAdvisory Commission

Real Estate Advisory Commission:appointed by the Governor10 members, including 6 brokers and 4

members of the public

Makes suggestions to Commissioner regarding policies and functions of the DRE.

Page 14: Lesson 16: California Real Estate License Law Principles of California Real Estate

Administration of Real Estate LawAttorney General

California Attorney General provides legal advice to Commissioner regarding the Real Estate Law.

Page 15: Lesson 16: California Real Estate License Law Principles of California Real Estate

Administration of Real Estate LawAttorney General

California Attorney General provides legal advice to Commissioner regarding the Real Estate Law.

Violations of the Real Estate Law prosecuted by district attorney of county in which they occur, not by state Attorney General.

Page 16: Lesson 16: California Real Estate License Law Principles of California Real Estate

When a License is Required

Anyone who acts or appears to act as a real estate broker or salesperson must have a real estate license.

Page 17: Lesson 16: California Real Estate License Law Principles of California Real Estate

When a License is RequiredBroker definition

The Real Estate Law defines a real estate broker as someone who engages in specified real estate activities:on behalf of another person, AND

Page 18: Lesson 16: California Real Estate License Law Principles of California Real Estate

When a License is RequiredBroker definition

The Real Estate Law defines a real estate broker as someone who engages in specified real estate activities:on behalf of another person, ANDfor compensation (or the promise of

compensation).

Page 19: Lesson 16: California Real Estate License Law Principles of California Real Estate

The real estate activities listed in the Real Estate Law’s broker definition include all of the following.

When a License is RequiredReal estate activities

Page 20: Lesson 16: California Real Estate License Law Principles of California Real Estate

Selling, buying, leasing, collecting rents from, or buying, selling, or exchanging leases on: real property, orbusiness opportunities.

When a License is RequiredReal estate activities

Page 21: Lesson 16: California Real Estate License Law Principles of California Real Estate

Filing applications for the purchase or lease of federal lands.

When a License is RequiredReal estate activities

Page 22: Lesson 16: California Real Estate License Law Principles of California Real Estate

Soliciting borrowers or lenders, negotiating loans, promoting services in connection with loans secured by real property, or buying, selling, or exchanging real property securities.

When a License is RequiredReal estate activities

Page 23: Lesson 16: California Real Estate License Law Principles of California Real Estate

Listing, advertising, or offering real property or business opportunities for sale, lease, exchange, or financing.

When a License is RequiredReal estate activities

Page 24: Lesson 16: California Real Estate License Law Principles of California Real Estate

Engaging in the business of buying, selling, or exchanging 8 or more real property securities (e.g., land contracts or promissory notes) within one year.

When a License is RequiredReal estate activities

Page 25: Lesson 16: California Real Estate License Law Principles of California Real Estate

Collecting an advance fee to promote the sale or lease of real property or business opportunities.

When a License is RequiredReal estate activities

Page 26: Lesson 16: California Real Estate License Law Principles of California Real Estate

When a License is RequiredPenalties for unlicensed activities

Penalty for an individual who acts as a real estate broker or salesperson without a license:a fine of up to $10,000, andimprisonment for up to six months

Page 27: Lesson 16: California Real Estate License Law Principles of California Real Estate

When a License is RequiredPenalties for unlicensed activities

Penalty for an individual who acts as a real estate broker or salesperson without a license:a fine of up to $10,000, andimprisonment for up to six months

Penalty for a corporation: $50,000 fine

Page 28: Lesson 16: California Real Estate License Law Principles of California Real Estate

Types of LicensesBroker’s license

A broker’s license allows a person to: perform the previously listed real estate

activities on behalf of another person for compensation

Page 29: Lesson 16: California Real Estate License Law Principles of California Real Estate

Types of LicensesBroker’s license

A broker’s license allows a person to: perform the previously listed real estate

activities on behalf of another person for compensation

operate a brokerage business

Page 30: Lesson 16: California Real Estate License Law Principles of California Real Estate

Types of LicensesBroker’s license

A broker’s license allows a person to: perform the previously listed real estate

activities on behalf of another person for compensation

operate a brokerage business employ salespersons as affiliated licensees

to help him or her engage in real estate activities

Page 31: Lesson 16: California Real Estate License Law Principles of California Real Estate

Types of LicensesBroker’s license

A licensed broker who works for another broker rather than starting her own brokerage is sometimes called an associate broker.

Page 32: Lesson 16: California Real Estate License Law Principles of California Real Estate

Types of LicensesBroker’s license

A licensed broker who works for another broker rather than starting her own brokerage is sometimes called an associate broker.

There is no special “associate broker’s license.”

Page 33: Lesson 16: California Real Estate License Law Principles of California Real Estate

Types of LicensesBroker’s license

A licensed broker who works for another broker rather than starting her own brokerage is sometimes called an associate broker.

There is no special “associate broker’s license.”

While working as an associate broker, a broker has essentially the same status as a salesperson.

Page 34: Lesson 16: California Real Estate License Law Principles of California Real Estate

Types of LicensesSalesperson’s license

A salesperson can engage in real estate activities only as a broker’s representative.

Page 35: Lesson 16: California Real Estate License Law Principles of California Real Estate

Types of LicensesSalesperson’s license

A salesperson can engage in real estate activities only as a broker’s representative.

A salesperson cannot represent members of the public directly.

Page 36: Lesson 16: California Real Estate License Law Principles of California Real Estate

Licensing Exemptions

The following aren’t required to have a real estate license even if they are performing activities covered by the broker definition.

Page 37: Lesson 16: California Real Estate License Law Principles of California Real Estate

Licensing Exemptions

A person buying or leasing property:for himself, oron behalf of a group to which he belongs

(such as a partnership).

Page 38: Lesson 16: California Real Estate License Law Principles of California Real Estate

Licensing Exemptions

An attorney in fact authorized by a recorded power of attorney.

Page 39: Lesson 16: California Real Estate License Law Principles of California Real Estate

Licensing Exemptions

An attorney in fact authorized by a recorded power of attorney.

An attorney at law, in the performance of her duties as a lawyer.

Page 40: Lesson 16: California Real Estate License Law Principles of California Real Estate

Licensing Exemptions

A person acting under court order, such as:the executor or administrator of an estatea bankruptcy trusteea guardian

Page 41: Lesson 16: California Real Estate License Law Principles of California Real Estate

Licensing Exemptions

A person acting under court order, such as:the executor or administrator of an estatea bankruptcy trusteea guardian

A trustee selling property pursuant to the power of sale clause in a deed of trust.

Page 42: Lesson 16: California Real Estate License Law Principles of California Real Estate

Licensing Exemptions

An appraiser making an appraisal.

Page 43: Lesson 16: California Real Estate License Law Principles of California Real Estate

Licensing Exemptions

An appraiser making an appraisal.

An employee of a financial institution in regard to real property securities.

Page 44: Lesson 16: California Real Estate License Law Principles of California Real Estate

Licensing Exemptions

An appraiser making an appraisal.

An employee of a financial institution in regard to real property securities.

A licensed securities broker or dealer with respect to business opportunity transactions.

Page 45: Lesson 16: California Real Estate License Law Principles of California Real Estate

Licensing Exemptions

A cemetery authority or its authorized agent.

Page 46: Lesson 16: California Real Estate License Law Principles of California Real Estate

Licensing Exemptions

A cemetery authority or its authorized agent.

A secretary, bookkeeper, accountant, or other employee of a real estate broker:performing purely clerical dutiesnot discussing price, terms, or condition

of property

Page 47: Lesson 16: California Real Estate License Law Principles of California Real Estate

Licensing Exemptions

The resident manager of an apartment complex.

Page 48: Lesson 16: California Real Estate License Law Principles of California Real Estate

Licensing Exemptions

The resident manager of an apartment complex.

The manager of a hotel, motel, or trailer park.

Page 49: Lesson 16: California Real Estate License Law Principles of California Real Estate

Licensing Exemptions

The resident manager of an apartment complex.

The manager of a hotel, motel, or trailer park.

A person who negotiates the use of property for photographic purposes.

Page 50: Lesson 16: California Real Estate License Law Principles of California Real Estate

SummaryReal Estate Law

Department of Real Estate Real Estate Commissioner Real Estate Advisory Commission Broker Salesperson Associate broker Licensing exemptions

Page 51: Lesson 16: California Real Estate License Law Principles of California Real Estate

License QualificationsSalesperson

Five requirements for salesperson’s license:1. At least 18 years old2. Honest and truthful3. Pass state exam4. Pay license fee5. Complete 3 courses (9 semester units)

Page 52: Lesson 16: California Real Estate License Law Principles of California Real Estate

License QualificationsSalesperson

Course requirements for salesperson’s license

Before exam: Real Estate Principles

Page 53: Lesson 16: California Real Estate License Law Principles of California Real Estate

License QualificationsSalesperson

Course requirements for salesperson’s license

Before exam: Real Estate Principles

Before exam or within 18 months after licensing:Real Estate Practice, andan elective

Page 54: Lesson 16: California Real Estate License Law Principles of California Real Estate

License QualificationsBroker

Six requirements for broker’s license:

1. At least 18 years old

2. Honest and truthful

3. Pass state exam

4. Pay license fee

5. At least 2 years of experience as salesperson in last 5 years, or equivalent

6. Complete 8 courses (24 semester units)

Page 55: Lesson 16: California Real Estate License Law Principles of California Real Estate

Course requirements for broker’s license:Real Estate PracticeAppraisalEconomics or AccountingReal Estate LawReal Estate Finance3 electives

License QualificationsBroker

Page 56: Lesson 16: California Real Estate License Law Principles of California Real Estate

Licensing and Renewal Applying for a license

Applicant must apply for license within one year after date of passing the exam.

Page 57: Lesson 16: California Real Estate License Law Principles of California Real Estate

Licensing and RenewalRenewing a license

License valid for 4 years.

Page 58: Lesson 16: California Real Estate License Law Principles of California Real Estate

Licensing and RenewalRenewing a license

License valid for 4 years.

Licensee renews by:completing continuing education

requirementssubmitting applicationpaying renewal fee

Page 59: Lesson 16: California Real Estate License Law Principles of California Real Estate

Licensing and RenewalRenewing a license

License valid for 4 years.

Licensee renews by:completing continuing education

requirementssubmitting applicationpaying renewal fee

Doesn’t have to take state exam again.

Page 60: Lesson 16: California Real Estate License Law Principles of California Real Estate

Licensing and RenewalContinuing education

State law requires continuing education throughout real estate career.

Page 61: Lesson 16: California Real Estate License Law Principles of California Real Estate

Continuing EducationSalesperson’s first renewal

12 hours of continuing education required for first renewal of salesperson’s license.

Page 62: Lesson 16: California Real Estate License Law Principles of California Real Estate

Continuing EducationSalesperson’s first renewal

12 hours of continuing education required for first renewal of salesperson’s license.

This must include one 3-hour course on each of these subjects:ethicsagencytrust fund handlingfair housing

Page 63: Lesson 16: California Real Estate License Law Principles of California Real Estate

45 hours of continuing education required for first renewal of broker’s license.

Continuing EducationBroker’s first renewal

Page 64: Lesson 16: California Real Estate License Law Principles of California Real Estate

45 hours of continuing education required for first renewal of broker’s license.

This must include:the 12 hours of courses required for a

salesperson’s first renewalat least 18 hours of courses designated as

consumer protection courses

Continuing EducationBroker’s first renewal

Page 65: Lesson 16: California Real Estate License Law Principles of California Real Estate

45 hours of continuing education required for all subsequent renewals, for both salespersons and brokers.

Continuing EducationSubsequent renewals

Page 66: Lesson 16: California Real Estate License Law Principles of California Real Estate

45 hours of continuing education required for all subsequent renewals, for both salespersons and brokers.

This must include:a 6-hour short course on the four

mandatory topicsat least 18 hours of consumer protection

courseselectives (consumer service courses)

Continuing EducationSubsequent renewals

Page 67: Lesson 16: California Real Estate License Law Principles of California Real Estate

A licensee is not required to fulfill continuing education requirements if:at least 70 years old, andhas been a licensee in good standing in

California for at least 30 years.

Continuing EducationExemption

Page 68: Lesson 16: California Real Estate License Law Principles of California Real Estate

Licensing and RenewalLate renewal

License expires if licensee misses the 4-year renewal deadline.

Page 69: Lesson 16: California Real Estate License Law Principles of California Real Estate

Licensing and RenewalLate renewal

License expires if licensee misses the 4-year renewal deadline.

Grace period: License can be renewed within 2 years after expiration if a penalty is paid.

Page 70: Lesson 16: California Real Estate License Law Principles of California Real Estate

Licensing and RenewalLate renewal

License expires if licensee misses the 4-year renewal deadline.

Grace period: License can be renewed within 2 years after expiration if a penalty is paid.

After 2-year grace period ends:all license rights are lostformer licensee would have to take state

exam again and apply for a new license

Page 71: Lesson 16: California Real Estate License Law Principles of California Real Estate

SummaryLicense Qualifications and Renewal

Requirements for salesperson’s license

Requirements for broker’s license

License renewal License expiration

Continuing education requirementsFirst renewalSubsequent

renewals

Page 72: Lesson 16: California Real Estate License Law Principles of California Real Estate

Other License ProvisionsLocation of licenses

Salesperson may work only under a broker’s supervision.

Page 73: Lesson 16: California Real Estate License Law Principles of California Real Estate

Other License ProvisionsLocation of licenses

Salesperson may work only under a broker’s supervision.

Broker has custody of the salesperson’s license while the salesperson works for him.

Page 74: Lesson 16: California Real Estate License Law Principles of California Real Estate

Other License ProvisionsLocation of licenses

Salesperson may work only under a broker’s supervision.

Broker has custody of the salesperson’s license while the salesperson works for him.

Licenses of broker and affiliated licensees are kept at the broker’s main office.

Page 75: Lesson 16: California Real Estate License Law Principles of California Real Estate

Other License ProvisionsTransferring a license

Broker or salesperson may terminate an affiliation at any time.

Page 76: Lesson 16: California Real Estate License Law Principles of California Real Estate

Other License ProvisionsTransferring a license

Broker or salesperson may terminate an affiliation at any time.

If a salesperson transfers to a new broker, the new broker must notify the DRE within 5 days.

Page 77: Lesson 16: California Real Estate License Law Principles of California Real Estate

If salesperson quits or is terminated, broker must return the salesperson’s license to her within 3 days.

Other License ProvisionsTermination of salesperson’s license

Page 78: Lesson 16: California Real Estate License Law Principles of California Real Estate

If salesperson quits or is terminated, broker must return the salesperson’s license to her within 3 days.

If salesperson is discharged for conduct subject to disciplinary action, broker must provide statement of facts to Commissioner.

Other License ProvisionsTermination of salesperson’s license

Page 79: Lesson 16: California Real Estate License Law Principles of California Real Estate

Other License ProvisionsTermination of broker’s license

If a broker’s license is suspended or terminated:the licenses of affiliated licensees are

canceled, and

Page 80: Lesson 16: California Real Estate License Law Principles of California Real Estate

Other License ProvisionsTermination of broker’s license

If a broker’s license is suspended or terminated:the licenses of affiliated licensees are

canceled, andshould be returned to the licensees so

they can be transferred to other brokers.

Page 81: Lesson 16: California Real Estate License Law Principles of California Real Estate

Other License ProvisionsNew location or name

Broker must notify the Commissioner if brokerage:moves to a new locationadds a branch office

Page 82: Lesson 16: California Real Estate License Law Principles of California Real Estate

Other License ProvisionsNew location or name

Broker must notify the Commissioner if brokerage:moves to a new locationadds a branch office

Broker or salesperson must notify the Commissioner if his or her name changes.

Page 83: Lesson 16: California Real Estate License Law Principles of California Real Estate

Other License ProvisionsFictitious business names

A broker may conduct business under a fictitious name if broker:is licensed under that namefiles fictitious name statement with

county clerkpublishes notice in a newspaper

Page 84: Lesson 16: California Real Estate License Law Principles of California Real Estate

Other License ProvisionsFictitious business names

A broker may conduct business under a fictitious name if broker:is licensed under that namefiles fictitious name statement with

county clerkpublishes notice in a newspaper

Statement expires 5 years after December 31 of the year in which it was filed.

Page 85: Lesson 16: California Real Estate License Law Principles of California Real Estate

Other License ProvisionsUnpaid child support

DRE may not issue or renew license if applicant or licensee is on state’s list of persons who haven’t complied with court order regarding child support payments.

Page 86: Lesson 16: California Real Estate License Law Principles of California Real Estate

Other License ProvisionsUnpaid child support

DRE may not issue or renew license if applicant or licensee is on state’s list of persons who haven’t complied with court order regarding child support payments.

If licensee’s name is on list for 150 days, DRE may suspend license.

Page 87: Lesson 16: California Real Estate License Law Principles of California Real Estate

Special LicensesCorporations

A broker’s license may be issued to a corporation.

License issued in the name of the firm.

Page 88: Lesson 16: California Real Estate License Law Principles of California Real Estate

Special LicensesCorporations

A broker’s license may be issued to a corporation.

License issued in the name of the firm.

One officer of the corporation licensed as the designated broker.

Page 89: Lesson 16: California Real Estate License Law Principles of California Real Estate

Special LicensesCorporations

A broker’s license may be issued to a corporation.

License issued in the name of the firm.

One officer of the corporation licensed as the designated broker.

Designated broker must meet all qualifications for a broker’s license.

Page 90: Lesson 16: California Real Estate License Law Principles of California Real Estate

Special LicensesRestricted licenses

Commissioner may grant restricted license to licensee whose license has been suspended or revoked.

Page 91: Lesson 16: California Real Estate License Law Principles of California Real Estate

Special LicensesRestricted licenses

Commissioner may grant restricted license to licensee whose license has been suspended or revoked.

Restricted license may:have limited termrestrict licensee to certain activitiesrequire licensee to affiliate with a

particular broker

Page 92: Lesson 16: California Real Estate License Law Principles of California Real Estate

Special LicensesPrepaid rental listing service

Operator of a service that provides lists of available rentals must have:real estate broker’s license, or prepaid rental listing service license

from DRE.

Page 93: Lesson 16: California Real Estate License Law Principles of California Real Estate

Special LicensesOut-of-state developments

To sell shares in an out-of-state timeshare, special permit from DRE required.

Page 94: Lesson 16: California Real Estate License Law Principles of California Real Estate

Special LicensesOut-of-state developments

To sell shares in an out-of-state timeshare, special permit from DRE required.

Lots in an out-of-state subdivision can be sold only if subdivision is registered with DRE.

Page 95: Lesson 16: California Real Estate License Law Principles of California Real Estate

Business Opportunities

Business opportunity: The sale or lease of a business, including inventory, fixtures, and goodwill.

Page 96: Lesson 16: California Real Estate License Law Principles of California Real Estate

Business Opportunities

Business opportunity: The sale or lease of a business, including inventory, fixtures, and goodwill.

Agent involved in sale of business opportunity:must have a real estate license,even if no real estate is involved.

Page 97: Lesson 16: California Real Estate License Law Principles of California Real Estate

Business Opportunities

Business opportunity: The sale or lease of a business, including inventory, fixtures, and goodwill.

Agent involved in sale of business opportunity:must have a real estate license,even if no real estate is involved.

If shares of stock are involved, agent may also need a securities license.

Page 98: Lesson 16: California Real Estate License Law Principles of California Real Estate

Business OpportunitiesFranchise agreements

A franchise agreement is a common type of business opportunity.

Page 99: Lesson 16: California Real Estate License Law Principles of California Real Estate

Business OpportunitiesFranchise agreements

A franchise agreement is a common type of business opportunity.

Buyer pays a fee to operate a business under a franchisor’s brand name and marketing plan.

Page 100: Lesson 16: California Real Estate License Law Principles of California Real Estate

Business OpportunitiesSales tax

Sale of business is subject to state sales tax if it involves transfer of personal property (such as inventory).

Page 101: Lesson 16: California Real Estate License Law Principles of California Real Estate

Business OpportunitiesSales tax

Sale of business is subject to state sales tax if it involves transfer of personal property (such as inventory).

Tax is seller’s responsibility, but buyer could face successor’s liability.

Page 102: Lesson 16: California Real Estate License Law Principles of California Real Estate

Business OpportunitiesSales tax

Sale of business is subject to state sales tax if it involves transfer of personal property (such as inventory).

Tax is seller’s responsibility, but buyer could face successor’s liability.

Buyer should obtain Certificate of Clearance from Board of Equalization.

Page 103: Lesson 16: California Real Estate License Law Principles of California Real Estate

Business OpportunitiesSales tax

Sale of business is subject to state sales tax if it involves transfer of personal property (such as inventory).

Tax is seller’s responsibility, but buyer could face successor’s liability.

Buyer should obtain Certificate of Clearance from Board of Equalization.

Certifies that sales taxes have been paid.

Page 104: Lesson 16: California Real Estate License Law Principles of California Real Estate

Business OpportunitiesBulk sales

Bulk sale: Any sale, not in the ordinary course of business, of more than half of a seller’s inventory.

Page 105: Lesson 16: California Real Estate License Law Principles of California Real Estate

Business OpportunitiesBulk sales

Bulk sale: Any sale, not in the ordinary course of business, of more than half of a seller’s inventory.

Before bulk sale occurs, buyer must:record Notice of Intent to Buynotify the county tax assessorpublish a notice in newspaper

Page 106: Lesson 16: California Real Estate License Law Principles of California Real Estate

SummarySpecial Licenses and Activities

Corporate license Designated broker Restricted license Prepaid rental

listing service

Business opportunity Franchise agreement Successor’s liability Bulk sale

Page 107: Lesson 16: California Real Estate License Law Principles of California Real Estate

Disciplinary Action

Commissioner may take disciplinary action against licensee who violates the Real Estate Law.

Page 108: Lesson 16: California Real Estate License Law Principles of California Real Estate

Disciplinary ActionProcedures

Procedures involved in disciplinary action:1. Commissioner’s investigation2. Written accusation3. Administrative hearing

Page 109: Lesson 16: California Real Estate License Law Principles of California Real Estate

Disciplinary ProceduresCommissioner’s investigation

Commissioner must investigate all verified written complaints against licensees.

Page 110: Lesson 16: California Real Estate License Law Principles of California Real Estate

Disciplinary ProceduresAccusation

If investigation justifies formal action, Commissioner:files an accusationschedules administrative hearing

Page 111: Lesson 16: California Real Estate License Law Principles of California Real Estate

Disciplinary ProceduresAccusation

If investigation justifies formal action, Commissioner:files an accusationschedules administrative hearing

Accusation: written statement of charges.Must be filed within 3 years after the

violation.

Page 112: Lesson 16: California Real Estate License Law Principles of California Real Estate

Disciplinary ProceduresAdministrative hearing

Hearing conducted by an administrative law judge. Judge makes a proposed decision after

hearing testimony.

Page 113: Lesson 16: California Real Estate License Law Principles of California Real Estate

Disciplinary ProceduresAdministrative hearing

Hearing conducted by an administrative law judge. Judge makes a proposed decision after

hearing testimony.Commissioner accepts or rejects the

proposed decision in making a formal decision.

Page 114: Lesson 16: California Real Estate License Law Principles of California Real Estate

Disciplinary ActionSanctions

If accusation proved, Commissioner may:suspend or revoke license, orimpose fine of up to $250 for each day

the license would have been suspended.Maximum fine: $10,000

Page 115: Lesson 16: California Real Estate License Law Principles of California Real Estate

Disciplinary ActionAppeal

Disciplined licensee may: request reconsideration from

Commissioner, and/orappeal Commissioner’s decision to the

superior court.

Page 116: Lesson 16: California Real Estate License Law Principles of California Real Estate

Disciplinary ActionTemporary suspension

If license obtained by fraud, Commissioner may suspend license even before a hearing is held.

Page 117: Lesson 16: California Real Estate License Law Principles of California Real Estate

Disciplinary ActionTemporary suspension

If license obtained by fraud, Commissioner may suspend license even before a hearing is held.

Suspension effective only until hearing is held and Commissioner makes final decision.

Page 118: Lesson 16: California Real Estate License Law Principles of California Real Estate

Disciplinary ActionProsecution and civil liability

Licensee disciplined by Commissioner may also face:criminal prosecution by county prosecutorcivil suit by an injured party

Page 119: Lesson 16: California Real Estate License Law Principles of California Real Estate

Disciplinary ActionGrounds

Grounds for disciplinary action include—but are not limited to—any of the following violations.

Page 120: Lesson 16: California Real Estate License Law Principles of California Real Estate

Disciplinary ActionGrounds

Misrepresentation: Knowingly making false statements or failing to disclose material facts to a principal.

Page 121: Lesson 16: California Real Estate License Law Principles of California Real Estate

Disciplinary ActionGrounds

False advertising or running blind ads.

Blind ad: An advertisement placed by a real estate licensee that does not include a licensee designation and broker’s name.

Page 122: Lesson 16: California Real Estate License Law Principles of California Real Estate

Disciplinary ActionGrounds

Acting as a dual agent without the consent of both parties.

Page 123: Lesson 16: California Real Estate License Law Principles of California Real Estate

Disciplinary ActionGrounds

Commingling general funds with trust funds.

Page 124: Lesson 16: California Real Estate License Law Principles of California Real Estate

Being convicted of a felony or misdemeanor involving moral turpitude.

Disciplinary ActionGrounds

Page 125: Lesson 16: California Real Estate License Law Principles of California Real Estate

Making a secret profit on a transaction.

Disciplinary ActionGrounds

Page 126: Lesson 16: California Real Estate License Law Principles of California Real Estate

Performing real estate duties incompetently or negligently.

Disciplinary ActionGrounds

Page 127: Lesson 16: California Real Estate License Law Principles of California Real Estate

Engaging in discrimination, such as blockbusting or steering.

Disciplinary ActionGrounds

Page 128: Lesson 16: California Real Estate License Law Principles of California Real Estate

As a broker:failing to exercise adequate supervision

over affiliated licensees, oremploying unlicensed persons.

Disciplinary ActionGrounds

Page 129: Lesson 16: California Real Estate License Law Principles of California Real Estate

Real Estate Fund

All license fees are placed in the Real Estate Fund.

Page 130: Lesson 16: California Real Estate License Law Principles of California Real Estate

Real Estate Fund

All license fees are placed in the Real Estate Fund.

Portions of this fund are earmarked for:the Education and Research Accountthe Recovery Account

Page 131: Lesson 16: California Real Estate License Law Principles of California Real Estate

Real Estate FundRecovery account

Recovery Account is used to reimburse parties injured by a real estate agent’s:fraudmisrepresentationdeceitconversion of trust funds

Page 132: Lesson 16: California Real Estate License Law Principles of California Real Estate

Recovery AccountRequirements

Injured party must:obtain a civil judgment against the agent,

andshow that the agent has no funds or

assets that can be seized to pay the judgment.

Page 133: Lesson 16: California Real Estate License Law Principles of California Real Estate

Recovery Account will pay:up to $20,000 for any one transactionup to $100,000 for any one licensee

Recovery AccountLimitations

Page 134: Lesson 16: California Real Estate License Law Principles of California Real Estate

Recovery Account will pay:up to $20,000 for any one transactionup to $100,000 for any one licensee

Agent’s license suspended until the amount paid out is repaid to the Recovery Account with interest.

Recovery AccountLimitations

Page 135: Lesson 16: California Real Estate License Law Principles of California Real Estate

SummaryDisciplinary Action

Grounds for disciplinary action

Sanctions Appeal Real Estate Fund Recovery Account

Page 136: Lesson 16: California Real Estate License Law Principles of California Real Estate

Trust Accounts

Funds that real estate brokers hold in trust for clients:good faith depositstenant security depositscollected rentsadvance fees

Page 137: Lesson 16: California Real Estate License Law Principles of California Real Estate

Trust Accounts

Funds that real estate brokers hold in trust for clients:good faith depositstenant security depositscollected rentsadvance fees

Advance fees: Fees a seller might pay in advance for expenses associated with a listing.

Page 138: Lesson 16: California Real Estate License Law Principles of California Real Estate

Trust AccountsSeparate from general account

Broker must maintain one or more trust accounts to keep trust funds separate from broker’s own money.

Page 139: Lesson 16: California Real Estate License Law Principles of California Real Estate

Trust AccountsSeparate from general account

Broker must maintain one or more trust accounts to keep trust funds separate from broker’s own money.

Trust accounts should be:opened in the broker’s name as licensedspecially designated as trust accounts

Page 140: Lesson 16: California Real Estate License Law Principles of California Real Estate

Trust AccountsDeadline for deposit

Funds should be deposited in trust account no later than the third business day after they’re received.

Page 141: Lesson 16: California Real Estate License Law Principles of California Real Estate

Trust AccountsDeadline for deposit

Funds should be deposited in trust account no later than the third business day after they’re received.

Broker may pass a check directly from a principal to a third party or another principal without putting it in trust account first.Check should still be recorded in the

broker’s trust funds records.

Page 142: Lesson 16: California Real Estate License Law Principles of California Real Estate

Trust AccountsReceipt by salesperson

When trust funds are given to a salesperson, the salesperson should immediately:deliver the funds to her broker, ordeposit the funds into her broker’s trust

account.

Page 143: Lesson 16: California Real Estate License Law Principles of California Real Estate

Trust AccountsGood faith deposits

Exception to rule: Good faith deposit check can be held uncashed until buyer’s offer is accepted.

Page 144: Lesson 16: California Real Estate License Law Principles of California Real Estate

Before seller accepts offer:good faith deposit belongs to the buyer

Trust AccountsGood faith deposits

Page 145: Lesson 16: California Real Estate License Law Principles of California Real Estate

Before seller accepts offer:good faith deposit belongs to the buyermust be returned to buyer if he demands it

Trust AccountsGood faith deposits

Page 146: Lesson 16: California Real Estate License Law Principles of California Real Estate

After offer accepted:broker may hold check uncashed only

with seller’s written authorization

Trust AccountsGood faith deposits

Page 147: Lesson 16: California Real Estate License Law Principles of California Real Estate

After offer accepted:broker may hold check uncashed only

with seller’s written authorizationno part of the deposit can be refunded

without seller’s written permission

Trust AccountsGood faith deposits

Page 148: Lesson 16: California Real Estate License Law Principles of California Real Estate

If transaction falls through and parties dispute who is entitled to the deposit:Broker files interpleader action and turns

funds over to the court.

Trust AccountsGood faith deposits

Page 149: Lesson 16: California Real Estate License Law Principles of California Real Estate

If transaction falls through and parties dispute who is entitled to the deposit:Broker files interpleader action and turns

funds over to the court.Court decides which party gets the

deposit.

Trust AccountsGood faith deposits

Page 150: Lesson 16: California Real Estate License Law Principles of California Real Estate

Trust AccountsCommingling

Commingling: Illegally mixing trust funds with personal funds.

Page 151: Lesson 16: California Real Estate License Law Principles of California Real Estate

Trust AccountsCommingling

Commingling: Illegally mixing trust funds with personal funds.

Conversion: Appropriating client funds for a broker’s own purposes. Conversion is a basis for theft charges.

Page 152: Lesson 16: California Real Estate License Law Principles of California Real Estate

Funds in trust account should always equal the broker’s trust fund liability.Shortage or overage is a violation of the

Real Estate Law.

Trust AccountsCommingling

Page 153: Lesson 16: California Real Estate License Law Principles of California Real Estate

Funds in trust account should always equal the broker’s trust fund liability.Shortage or overage is a violation of the

Real Estate Law.

Exception: Broker may keep up to $200 of her own funds in a trust account to pay bank’s service charges.

Trust AccountsCommingling

Page 154: Lesson 16: California Real Estate License Law Principles of California Real Estate

If broker is owed a commission from trust funds, he may withdraw it directly from the trust account.

Trust AccountsCommingling

Page 155: Lesson 16: California Real Estate License Law Principles of California Real Estate

If broker is owed a commission from trust funds, he may withdraw it directly from the trust account.

Other expenses cannot be paid directly out of trust account.Example: salesperson’s commission

Trust AccountsCommingling

Page 156: Lesson 16: California Real Estate License Law Principles of California Real Estate

Trust AccountsInterest-bearing accounts

Trust account can’t be an interest-bearing account, unless the owner of the trust funds requests that.

Page 157: Lesson 16: California Real Estate License Law Principles of California Real Estate

Trust AccountsInterest-bearing accounts

Trust account can’t be an interest-bearing account, unless the owner of the trust funds requests that.

Interest on trust account can’t accrue to the broker.

Page 158: Lesson 16: California Real Estate License Law Principles of California Real Estate

Trust AccountsWithdrawals

Trust accounts must be set up with the broker as trustee.

Page 159: Lesson 16: California Real Estate License Law Principles of California Real Estate

Trust AccountsWithdrawals

Trust accounts must be set up with the broker as trustee.

Broker may authorize withdrawals by:affiliated licenseesunlicensed employees covered by a bond

equaling the amount held in trust

Page 160: Lesson 16: California Real Estate License Law Principles of California Real Estate

Trust AccountsTrust account records

Broker’s records must include:trust fund receipts and disbursements

Page 161: Lesson 16: California Real Estate License Law Principles of California Real Estate

Trust AccountsTrust account records

Broker’s records must include:trust fund receipts and disbursementsbalance of each trust account

Page 162: Lesson 16: California Real Estate License Law Principles of California Real Estate

Trust AccountsTrust account records

Broker’s records must include:trust fund receipts and disbursementsbalance of each trust accountreceipts and disbursements affecting each

client or customer’s account

Page 163: Lesson 16: California Real Estate License Law Principles of California Real Estate

Trust AccountsTrust account records

Broker’s records must include:trust fund receipts and disbursementsbalance of each trust accountreceipts and disbursements affecting each

client or customer’s accountbalance owed to each client or customer

Page 164: Lesson 16: California Real Estate License Law Principles of California Real Estate

Trust AccountsTrust account records

Broker’s records must include:trust fund receipts and disbursementsbalance of each trust accountreceipts and disbursements affecting each

client or customer’s accountbalance owed to each client or customer

Receipts and disbursements must be in chronological order.

Page 165: Lesson 16: California Real Estate License Law Principles of California Real Estate

Trust account records must be kept for at least 3 years after the date of closing.

Trust AccountsTrust account records

Page 166: Lesson 16: California Real Estate License Law Principles of California Real Estate

Trust account records must be kept for at least 3 years after the date of closing.

Records are subject to inspection by the Commissioner.

Trust AccountsTrust account records

Page 167: Lesson 16: California Real Estate License Law Principles of California Real Estate

Recordkeeping

Other documents must also be available for 3 years after closing date (or listing date, if sale doesn’t close).

Page 168: Lesson 16: California Real Estate License Law Principles of California Real Estate

Recordkeeping3-year requirement

Three-year requirement applies to:listing agreementsdeposit receipts

Page 169: Lesson 16: California Real Estate License Law Principles of California Real Estate

Recordkeeping3-year requirement

Three-year requirement applies to:listing agreementsdeposit receiptsrent collection receiptsbank deposit slips

Page 170: Lesson 16: California Real Estate License Law Principles of California Real Estate

Recordkeeping3-year requirement

Three-year requirement applies to:listing agreementsdeposit receiptsrent collection receiptsbank deposit slipscanceled checks and supporting papersagency disclosure statements

Page 171: Lesson 16: California Real Estate License Law Principles of California Real Estate

Recordkeeping3-year requirement

Three-year requirement applies to:listing agreementsdeposit receiptsrent collection receiptsbank deposit slipscanceled checks and supporting papersagency disclosure statementstransfer disclosure statementsproperty management agreements

Page 172: Lesson 16: California Real Estate License Law Principles of California Real Estate

Recordkeeping4-year requirement

Records that must be kept for 4 years:mortgage loan disclosure statementsreal property security statements

Page 173: Lesson 16: California Real Estate License Law Principles of California Real Estate

RecordkeepingBroker-salesperson agreement

A broker-salesperson agreement must be:in writingkept on file at broker’s officeretained for reasonable time after

termination of the relationship

Page 174: Lesson 16: California Real Estate License Law Principles of California Real Estate

RecordkeepingCopies to signators

An agent must provide each client or customer who signs a document with a copy.

Page 175: Lesson 16: California Real Estate License Law Principles of California Real Estate

RecordkeepingBroker’s review

Broker must review documents prepared or signed by affiliated licensees.

Page 176: Lesson 16: California Real Estate License Law Principles of California Real Estate

Advertising

False advertising and other violations of advertising laws are:violations of the Real Estate Lawmisdemeanors

Page 177: Lesson 16: California Real Estate License Law Principles of California Real Estate

AdvertisingBlind ads

Blind ad: An advertisement placed by a real estate agent that does not:include the broker’s name, and/orstate that it was published by a real estate

licensee.

Page 178: Lesson 16: California Real Estate License Law Principles of California Real Estate

AdvertisingBlind ads

Blind ad: An advertisement placed by a real estate agent that does not:include the broker’s name, and/orstate that it was published by a real estate

licensee.

Blind ads are illegal.

Page 179: Lesson 16: California Real Estate License Law Principles of California Real Estate

If a licensee is listing her own property for sale, she doesn’t need to include her broker’s name.Ad still must state that she is a real estate

licensee.

AdvertisingBlind ads

Page 180: Lesson 16: California Real Estate License Law Principles of California Real Estate

AdvertisingLoans and notes

Ads for loan products must be approved by the DRE before publication.

Page 181: Lesson 16: California Real Estate License Law Principles of California Real Estate

AdvertisingLoans and notes

Ad for a promissory note:can’t promise a yield or return different

from the rate specified on the note,

Page 182: Lesson 16: California Real Estate License Law Principles of California Real Estate

AdvertisingLoans and notes

Ad for a promissory note:can’t promise a yield or return different

from the rate specified on the note,unless it also reveals the discount at

which the note is being sold.

Page 183: Lesson 16: California Real Estate License Law Principles of California Real Estate

Ad for a loan may not:use a phrase like “guaranteed” without

describing how the loan is secured

AdvertisingLoans and notes

Page 184: Lesson 16: California Real Estate License Law Principles of California Real Estate

Ad for a loan may not:use a phrase like “guaranteed” without

describing how the loan is securedimply that the loan:

can be approved over the telephone is endorsed by a government agency

AdvertisingLoans and notes

Page 185: Lesson 16: California Real Estate License Law Principles of California Real Estate

AdvertisingInducements

If attendance at a sales presentation is required in order to receive a gift or prize, those terms must be disclosed.

Page 186: Lesson 16: California Real Estate License Law Principles of California Real Estate

AdvertisingInducements

If attendance at a sales presentation is required in order to receive a gift or prize, those terms must be disclosed.

If an inducement is given to one party in a transaction, that’s a material fact that must be disclosed to all parties.

Page 187: Lesson 16: California Real Estate License Law Principles of California Real Estate

AdvertisingInducements

If attendance at a sales presentation is required in order to receive a gift or prize, those terms must be disclosed.

If an inducement is given to one party in a transaction, that’s a material fact that must be disclosed to all parties.

Inducements are always forbidden in loan transactions.

Page 188: Lesson 16: California Real Estate License Law Principles of California Real Estate

SummaryTrust Funds and Recordkeeping

Trust account Deadline for deposit Good faith deposit check Commingling Recordkeeping requirements Blind ad

Page 189: Lesson 16: California Real Estate License Law Principles of California Real Estate

Antitrust Laws

Antitrust laws limit anticompetitive behavior in the marketplace.

Page 190: Lesson 16: California Real Estate License Law Principles of California Real Estate

Antitrust Laws

Antitrust laws limit anticompetitive behavior in the marketplace.

The primary antitrust law is the federal Sherman Act, passed in 1890.

Page 191: Lesson 16: California Real Estate License Law Principles of California Real Estate

Antitrust Laws

Antitrust laws limit anticompetitive behavior in the marketplace.

The primary antitrust law is the federal Sherman Act, passed in 1890.

1950 Supreme Court case decided that the Sherman Act applies to real estate activities.

Page 192: Lesson 16: California Real Estate License Law Principles of California Real Estate

Antitrust LawsPenalties

Penalties for Sherman Act violations:Individual: fine of up to $350,000, and/or

3 years of imprisonment.Corporation: fine of up to ten million

dollars.

Page 193: Lesson 16: California Real Estate License Law Principles of California Real Estate

Antitrust LawsViolations

Three main categories of antitrust law violations:price fixinggroup boycottstie-in arrangements

Page 194: Lesson 16: California Real Estate License Law Principles of California Real Estate

Antitrust LawsPrice fixing

Price fixing: The cooperative setting of prices by two or more competitors.

Page 195: Lesson 16: California Real Estate License Law Principles of California Real Estate

Antitrust LawsPrice fixing

Agents from different brokerages should never discuss commission rates.

Page 196: Lesson 16: California Real Estate License Law Principles of California Real Estate

Antitrust LawsPrice fixing

Agents from different brokerages should never discuss commission rates.

Broker may discuss commission rates with:affiliated licensees, oranother broker if it’s in connection with a

commission split

Page 197: Lesson 16: California Real Estate License Law Principles of California Real Estate

A real estate agent should never tell a client that a commission rate is non-negotiable.

Antitrust LawsPrice fixing

Page 198: Lesson 16: California Real Estate License Law Principles of California Real Estate

A real estate agent should never tell a client that a commission rate is non-negotiable.

Preprinted forms that specify a particular commission rate are prohibited.

Antitrust LawsPrice fixing

Page 199: Lesson 16: California Real Estate License Law Principles of California Real Estate

Antitrust LawsGroup boycotts

Group boycott: An agreement by two or more competitors to exclude another competitor from the marketplace.

Page 200: Lesson 16: California Real Estate License Law Principles of California Real Estate

Antitrust LawsTie-in arrangements

Tie-in arrangement: An agreement to sell one product only on the condition that the buyer also purchases a different (or tied) product from the seller.

Page 201: Lesson 16: California Real Estate License Law Principles of California Real Estate

SummaryAntitrust Laws

Sherman Act Price fixing Group boycotts Tie-in arrangements